Tuesday, November 18, 2008

Where is the line to be drawn on contempt of court?

What exactly is the point of media injunctions in a world that has the Internet? There has in the last week been quite a lot of handwringing by some bloggers about links to archive articles in the Murdoch press about the Baby P case which were published before the injunction. Also the same handwirnging has occured because the BBC had two articles in their archive too.

When I called the BBC on Friday lunchtime about this I was told that the articles were being kept up because they were archive material and thus not in contempt of court by their presence. The guy who I spoke to (who I never bothered asking for the name of before anyone asks) said that they were not linking to it from current coverage and their legal advice was that it was OK to be left as such.

Clearly, since then, the BBC has decided to take both pages down, although why I do not know. The names of the mother, and the child are out there now anyway. I've just managed to find at least eight cut and paste copies of the BBC archive articles along with others on forums and Usenet. The BBC have also, bizarrely, left xml and wap copies of the page lying around - preusmably because no one has started screaming in moral indignation about them yet.

The thing is though, the foreign press has no such qualms about publishing names and details. A quick trip over to somewhere like Le Monde, Pravda, the Berliner Morgenpost, the Prague Post or any other daily nationals from mainland Europe or the former Eastern bloc* will elicit you the relevant information and then some.

Foreign news sources will provide not only names but tell you what the other case is that is ongoing - although to be fair you can find that out from open Court Records here anyway if you really wanted to know. The injunction is on reporting details and names, it is not on whether you are allowed to know the names and details. We do after all still have an open coirt system.

A quick visit to a Crown Court, say Belmarsh, will inform you that all cases ongoing are listed with court numbers etc. If you knew the names already you could easily find out where the case was going on and then just park your bum in the public gallery. After all, the injunction is not there to protect the individuals so much as protect the opinions formed by the Jury on the case.

I should know, I was on the Jury for a case with a media injunction imposed on it. That case also involved children, potential abuse and, in one part of a much larger case, a very high profile international celebrity. The injunction existed because there was going to inevitably be wide reporting of the trial. The potential therefore was that a jury member would be reading about the case they were hearing and may well be influenced by that reporting.

In fact, I was a member of the second Jury after the first was struck off. They were struck off because one of them went online and read the ample archive information about the case. Most of that infromation was widely inaccurate, and in many cases just plain wrong in the details of the incidents being heard in court.

That injunction, to my knowledge, still exists and, as with Baby P, there remains masses of foreign column-inches on the case and the resulting decision at the trial, along with names and other information. So again I ask the question "what exactly is the point of media injunctions in a world that has the Internet?".

Also where does the responsibility on publication really lie? If I directly linked to a foreign news article would I be in contempt of court? Would a foreign news agency see it's London office staff arrested for contempt? (I doubt). And lastly, does someone posting in an obscure Internet forum constitute contempt of court anymore than me walking into a pub and saying "Baby P's real name is ***** ********"? I may be wrong on this but I don't think the latter would.

Update: A comment has been left which says,

As far as I know, the injunction applies to the media.

I'm not media. I'm, just a bloke who blogs. Read their names and see their faces at my blog. Over 20,000 have already this week.

I have not linked to it because I'm not sure whether I am media or not. Technically it would take at least two clicks to get there. Is that enough to make me not responsible? I don't know. Am I "media"? I don't know?

You give the explanation yourself - it is the best available attempt to ensure that jurors come to a case with open minds and that all evidence used to decide the case is heard in the court where it can be probed and investigated.

The injunction is the only available means to do that, but is limited by the jurisdiction of the court (barring exceptions, only national). However, you assume that potential jurors search for materials on cases before they are jurors in that case. My general experience is that people return to certain content providers (and, typically, those providers are familiar national ones). Do not assume that you, as a pretty internet-experienced user, are necessarily typical. Most people browse the same sites day after day and if they haven't heard of a particular case, they won't know to search for it!

As such, whilst an injunction may not prevent all coverage, it probably does prevent the coverage more likely to prejudice a trial. With an injunction in place, most jurors will probably not have heard of a case before it comes to court. That is then combined with trial judges giving very strict directions to jurors not to investigate the matter for themselves, nor to access media content about the trial or surrounding facts. Judges are supposed to give just such directions where there is a risk of reporting prejudicing the trial (ex hypothesi, where there is reporting beyond the reach of any injunction).

It is less than perfect, but it is the best system currently available for ensuring fair trials (which is the important thing from the perspective of the court system). Alternatives would be to allow self-informing jurors, but that would increase the length (and cost) of trials as counsel had to engage with all online material or to sequester potential jurors as soon as it became apparent there might be material in the public domain which could jeopardise a fair trial. That would be a gross infringement of the liberty of the jurors and unworkable in practice.

[And the name of the baby is, I assume, being protected in part to protect his sibling(s) and other relatives from intrusive media, concerned individuals and to raise the prospect of any care/fostering etc proceeding successfully - unusual rules apply when the welfare of children is in issue.]

"How would you feel, as a blogger, if your site was a contributory factor in the parents escaping justice?"

Well as you said above, the naming that went on went on after the conviction had been secured. Of course there is the question of the other, ongoing case, and I would accept that there is a possibility of it being prejudiced. Having said this, as was noted above, if someone was that interested it that they had to know the information si out there and can be searched and is published legally by other countries.

The injunction have the remnant reminder of the whole Spycatcher absurdity.

I have not linked to it because I'm not sure whether I am media or not. Technically it would take at least two clicks to get there. Is that enough to make me not responsible? I don't know. Am I "media"? I don't know?

Of course you're media.

And you should respect any injunction applied to "the media", if you respect the medium.

If bloggers continue to flaunt the law in this way, they'll force the hand of censorship.

Let's choose our fights carefully. I see no merit in publishing these people's faces and their names.

We can call the MSM when they don't report the news, but let's not beat them in a race to the sewer.

Firstly, why am I media? Secondly, how am I different to media in another country? Serious question this but how do you know where I am actually posting this from? If I was in Spain I would not be subject to the injunction.

I see no merit in publishing these people's faces and their names.

I would turn that on its head. I don't see what the merit is in not publishing some if not all of their names given they are actually in the public domain anyway without the injunction.

"We can call the MSM when they don't report the news, but let's not beat them in a race to the sewer."

Firstly, who is calling the MSM, I'm not a special person, i;m just a bloke with a blog. Sorry. As for racing to swewer, why is Baby P's name more special than Victoria Climbie's?

I thought I was having a conversation with an adult. Remind me not to come here expecting to deal with someone older than 6.

Of course news and politics blogs are media. They're part of the news digest. People read them to learn about news and opinion. They're m.e.d.i.a.

Are you in Spain? Is the weather nice?

I would turn that on its head.

Unsurprisingly. What you forget is that by turning it on its head, you're supposed to make a point.

Firstly, who is calling the MSM, I'm not a special person, i;m just a bloke with a blog.

I never said anyone is calling the media. Did I? I was referring to when bloggers put their head above the parapet. Let's pick our fights. I've seen the logs that have featured the names and faces. I don't quite know what the point is.

Oh my Aaron, you do get rather petulaent when someone plays Devil's Advocate with you. Ironic too that you would call me a child in the process. Grow up you supercillious tit.

"Of course news and politics blogs are media."

Yes, I think I missed the word "the" out. Am I "the media"? That is the real question. After all, a blank cd is "media" in your broad definition.

"Are you in Spain? Is the weather nice?"

I was recently whilst posting and I will be again. I note that instead of tacklinjg the point being made you have just disdainfully dismissed it. Remind who the child is again?

Unsurprisingly. What you forget is that by turning it on its head, you're supposed to make a point.

Unsurprinsing. What you forget is that you didn;t bother reading the statement and instead skipped on and didn't respond to the part that said: "I don't see what the merit is in not publishing some if not all of their names given they are actually in the public domain anyway without the injunction."

The piont is rather clear, the names are int he public domain and where they are not prejudicial claiming there is "no merit" in publishing is no less or more accurate than claiming there is no merit in not publishing them.

I never said anyone is calling the media. Did I?

I never said you did say that. I simply asked the question "who is calling the MSM" after you said ""We can call the MSM".

Now Aaron, do try to not get yourself quite so angry with your next response. Try to respond to the points being made rather than ignoring the difficult and making up the rest.

Dizzy, you are media and being "the media" or not is irrelevant. Without having seen the specific injunction (but others presumably like it), injunctions bar "publication". There is no issue with "the media" at all, except that until recently they were the only real means of publication. If you are a means of publication (and a blog certainly does "publish" things), then you are covered.

The public domain point is sound, but undefined - what is the public domain? My guess is that you think that something on the web is in the public domain, whereas it can be argued that it is not really in the national public domain (which might be the important one). The key question is how far that holds as a legitimate distinction. At present it does seem to, but that may (will?) not last forever.

Incidentally, technically foreign media and publishers usually are covered by injunctions (subject to lots of technical rules), but such injunctions are often unenforceable outside the UK (first amendment rights blocking their enforcement in the US, for example). If a publisher has assets susceptible to the process of UK courts then it is prudent to comply with any injunction even if the injunction is unenforceable in the publishers home state.

In trying to enforce silence in thousands of news outlets (MSM + blogs) and having international sources outside courts' jurisdiction seems like a sledgehammer to crack a nut. The nut being to prevent 12 jurors being prejudiced by information from outside the court setting.

When I was a juror on a very nasty case, we were very sternly told to stay away from media and internet. Also we were told not to look up general legal information on the internet, as well as information specific to the case. If we did we would be guilty of contempt.

If the court has control over jurors, I don't see why it has to try to control the whole world, which is practically impossible anyway.

In fairness I didn't actually say I wasn't. What happened was Aaron did what is so commonly the case in any online discussion. He automatically assumed that my asking the question "why" was equivalent to saying "No I'm not". That is what made his response about not talking to an adult so hilarious for me personally.

"If you are a means of publication (and a blog certainly does "publish" things), then you are covered."

I'm not disgareeing with that either, although that is why my point comes in about location.

The public domain point is sound, but undefined - what is the public domain? My guess is that you think that something on the web is in the public domain, whereas it can be argued that it is not really in the national public domain (which might be the important one).

Your guess is actually wrong. As I've al;ready pointed out, the information is available in a library on microfiche newspaper archves, both local and national. I could pop into a library in the north of the country and ask to use the microfiche Times archive for example and find the names that way.

Can I just say thank you for approach and responding to the question raised like an adult as well.

I am still very curious about the location of the person doing the publishing. It is such a grey area I think. If I am, for example in Spain, and this site is, for example hosted in the US. If I publish something that is covered by an injunction in the UK, the enforcement, as is evident from the numerous foreign enwspaper reports, utterly pointless.

Aaron said,"Dizzy. Your attempts at humour are funny for all the wrong reasons."

Huh? What attempts at humour? I responded to you seriously and pointed out that you've reacted like a supercillious tit, explained why I think that, and noted where you have either ignored a salient point with selective quoting and/or implied I said something by assuming motive behind the question.

Trust me, dear, you don't get me half as worked up as you think you do.

Hmmm bit of an ego thing going on there methinks to assume that I actually waste my time thinking about you Aaron other than when you've leapt into a post of mine and made rather silly assumption about what a question might means motivationally rather than just asnwering it on face value.

Trust me dear, I don't think I work you up. You evidently do a good enough job of it yourself by not actually reading what is put in front of you.

"I thought there was a blanket order banning P's identification regardless of who you are."

Fortunately in the US the First Amendment prevails so you can pick up the information under censorship elsewhere, also Google cache will deal with eg. the removed BBC pages carrying the names of the individuals from pre ban reports.

As I understand it an order is made by a judge and that's it. With websites and blogs such an order does seem pointless. I suspect the law will only become clear once the CPS takes a blogger to court for breaking such an order. That is hardly the best way of doing it.

More to the point, what will change if the jurors know the names of the parents? It seems that if an injunction is to be put in place, it really ought to cover every piece of information about the case.

Imagine the situation: you're called for jury duty, as part of that duty you learn of the death of a 17 month old boy (allegedly) at the hands of his mother, her boyfriend and their 'lodger'. You are told the nature of some of the injuries the child sustained. How deep a hold would you have to have been living in before you could put two and two together and recognise the Baby P case without ever having heard the name of the baby/mother/boyfriend before?

As far as I can tell the name is an irrelevancy in terms of prejudicing the trial. It would have been better to release the names and keep the case details under wraps.